[Introduced February 18, 2013; referred to the Committee on
Health and Human Resources; and then to the Committee on the
Judiciary .]

____________

A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-4F-1, §16-4F-2,
§16-4F-3, §16-4F-4 and §16-4F-5; to amend and reenact §30-3-14
and §30-3-16 of said code; to amend and reenact §30-7-15a of
said code; to amend and reenact §30-14-11 of said code; and to
amend and reenact §30-14A-1 of said code, all relating to
treatment for a sexually transmitted disease; defining terms;
permitting prescribing of antibiotics to sexual partners of a
patient without a prior examination of the partner; requiring
patient counseling; establishing counseling criteria;
requiring information materials be prepared by the Department
of Health and Human Resources; providing limited liability for
providing expedited partnership therapy; requiring legislative
rules regarding what is considered a sexually transmitted disease; and providing that physicians, physician assistants
and advanced nurse practitioners are not subject to
disciplinary action for providing treatment in an expedited
partnership setting. Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-4F-1, §16-4F-2,
§16-4F-3, §16-4F-4 and §16-4F-5; that §30-3-14 and §30-3-16 of said
code be amended and reenacted; that §30-7-15a of said code be
amended and reenacted; that
§30-14-11 of said code be amended and
reenacted; and that §30-14A-1 of said code be amended and
reenacted, all to read as follows:

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 4F. EXPEDITED PARTNER THERAPY.§16-4F-1. Definitions.
As used in this article, unless the context otherwise
indicates, the following terms have the following meanings:
(1) "Department" means the West Virginia Department of Health
and Human Resources.
(2) "Expedited partner therapy" means prescribing, dispensing,
furnishing or otherwise providing prescription antibiotic drugs to
the sexual partner or partners of a person clinically diagnosed as
infected with a sexually transmitted disease without physical examination of the partner or partners.
(3) "Health care professional" means:
(A) An allopathic physician licensed pursuant to the
provisions of chapter thirty, article three of this code;
(B) An osteopathic physician licensed pursuant to article
fourteen, chapter thirty of this code;
(C) A physician assistant pursuant to the provisions of
section sixteen, article three, chapter thirty of this code or
article fourteen-a, chapter thirty of this code; or
(D) An advanced nurse practitioner pursuant to the provisions
of section fifteen-a, article seven, chapter thirty of this code.
(4) "Sexually transmitted disease" means a bacterial, viral,
fungal or parasitic disease determined by rule of the department to
be sexually transmitted, to be a threat to the public health and
welfare and to be a disease for which a legitimate public interest
will be served by providing for its regulation and treatment.§16-4F-2. Expedited partner therapy.
(a) Notwithstanding any other provision of law to the
contrary, a health care professional who makes a clinical diagnosis
of a sexually transmitted disease may provide expedited partner
therapy for the treatment of the sexually transmitted disease if in
the judgment of the health care professional the sexual partner is
unlikely or unable to present for comprehensive health care,
including evaluation, testing and treatment for sexually transmitted diseases. Expedited partner therapy is limited to a
sexual partner who may have been exposed to a sexually transmitted
disease within the previous sixty days and who is able to be
contacted by the patient.
(b) Any health care professional who provides expedited
partner therapy shall comply with all necessary provisions of
article four of this chapter.
(c) A health care professional who provides expedited partner
therapy shall provide counseling for the patient, including advice
that all women and symptomatic persons, and in particular women
with symptoms suggestive of pelvic inflammatory disease, are
encouraged to seek medical attention. The health care professional
shall also provide written materials provided by the department to
be given by the patient to the sexual partner that include at a
minimum the following:
(1) A warning that a woman who is pregnant or might be
pregnant should not take certain antibiotics and should immediately
contact a health care professional for an examination;
(2) Information about the antibiotic and dosage provided or
prescribed; clear and explicit allergy and side effect warnings,
including a warning that a sexual partner who has a history of
allergy to the antibiotic or the pharmaceutical class of antibiotic
should not take the antibiotic and should be immediately examined
by a health care professional;
(3) Information about the treatment and prevention of sexually
transmitted diseases;
(4) The requirement of abstinence until a period of time after
treatment to prevent infecting others;
(5) Notification of the importance of the sexual partner's
receiving examination and testing for the human immunodeficiency
virus and other sexually transmitted diseases and information
regarding available resources;
(6) Notification of the risk to the sexual partner, others and
the public health if the sexually transmitted disease is not
completely and successfully treated;
(7) The responsibility of the sexual partner to inform that
person's sexual partners of the risk of sexually transmitted
disease and the importance of prompt examination and treatment;
(8) Advice to all women and symptomatic persons, and in
particular women with symptoms suggestive of pelvic inflammatory
disease, to seek medical attention; and
(9) Other information found to be necessary and informative by
the department.§16-4F-3. Informational materials.
(a) The department shall provide information and technical
assistance as appropriate to health care professionals who provide
expedited partner therapy. The department shall develop and
disseminate in electronic and other formats the following written materials:
(1) Informational materials for sexual partners, as described
in subsection (c) of section two of this article;
(2) Informational materials for persons who are repeatedly
diagnosed with sexually transmitted diseases; and
(3) Guidance for health care professionals on the safe and
effective provision of expedited partner therapy.
(b) The department may offer educational programs about
expedited partner therapy for health care professionals and
pharmacists licensed under the provisions of article five, chapter
thirty of this code.§16-4F-4. Limitation of liability.
(a) A health care professional who provides expedited partner
therapy in good faith without fee or compensation under this
article and provides counseling and written materials as required
in subsection (c), section two of this article, is not subject to
civil or professional liability in connection with the provision of
the therapy, counseling and materials, except in the case of gross
negligence or willful and wanton misconduct. A health care
professional is not subject to civil or professional liability for
choosing not to provide expedited partner therapy.
(b) A pharmacist or pharmacy is not subject to civil or
professional liability for choosing not to fill a prescription that
would cause that pharmacist or pharmacy to violate any provision of the provisions of article five, chapter thirty of this code.§16-4F-5. Rulemaking.
The Secretary of the Department of Health and Human Resources
shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code to
designate certain diseases as sexually transmitted diseases. These
shall include, at a minimum, chancroid, gonorrhea, granuloma
inguinale, lymphogranuloma venereum, genital herpes simplex,
chlamydia, nongonococcal urethritis, pelvic inflammatory disease,
acute salpingitis, syphilis, Acquired Immune Deficiency Syndrome
and human immunodeficiency virus. The department shall consider
the recommendations and classifications of the federal Department
of Health and Human Services, Centers for Disease Control and
Prevention and other nationally recognized medical authorities in
making these designations.

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to
medical professional liability and professional
incompetence required; penalties; grounds for
license denial and discipline of physicians and
podiatrists; investigations; physical and mental examinations; hearings; sanctions; summary
sanctions; reporting by the board; reapplication;
civil and criminal immunity; voluntary limitation of
license; probable cause determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or unfavorable outcomes arising
out of medical professional liability. The board shall initiate an
investigation if it receives notice that three or more judgments,
or any combination of judgments and settlements resulting in five
or more unfavorable outcomes arising from medical professional
liability have been rendered or made against the physician or
podiatrist within a five-year period. The board may not consider
any judgments or settlements as conclusive evidence of professional
incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies of
the requests for information from a medical peer review committee
may be provided to the subject physician or podiatrist if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
provided, the subject physician or podiatrist is allowed fifteen
days to comment on the requested information and such comments must
be considered by the board.
The chief executive officer of every hospital shall, within
sixty days after the completion of the hospital's formal
disciplinary procedure and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, report in writing to the board the name of any member
of the medical staff or any other physician or podiatrist
practicing in the hospital whose hospital privileges have been
revoked, restricted, reduced or terminated for any cause, including
resignation, together with all pertinent information relating to
such action. The chief executive officer shall also report any
other formal disciplinary action taken against any physician or
podiatrist by the hospital upon the recommendation of its medical
staff relating to professional ethics, medical incompetence, medical professional liability, moral turpitude or drug or alcohol
abuse. Temporary suspension for failure to maintain records on a
timely basis or failure to attend staff or section meetings need
not be reported. Voluntary cessation of hospital privileges for
reasons unrelated to professional competence or ethics need not be
reported.
Any managed care organization operating in this state which
provides a formal peer review process shall report in writing to
the board, within sixty days after the completion of any formal
peer review process and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, the name of any physician or podiatrist whose
credentialing has been revoked or not renewed by the managed care
organization. The managed care organization shall also report in
writing to the board any other disciplinary action taken against a
physician or podiatrist relating to professional ethics,
professional liability, moral turpitude or drug or alcohol abuse
within sixty days after completion of a formal peer review process
which results in the action taken by the managed care organization.
For purposes of this subsection, "managed care organization" means
a plan that establishes, operates or maintains a network of health
care providers who have entered into agreements with and been
credentialed by the plan to provide health care services to
enrollees or insureds to whom the plan has the ultimate obligation to arrange for the provision of or payment for health care services
through organizational arrangements for ongoing quality assurance,
utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of
physicians or podiatrists which takes formal disciplinary action
against a member relating to professional ethics, professional
incompetence, medical professional liability, moral turpitude or
drug or alcohol abuse shall report in writing to the board within
sixty days of a final decision the name of the member, together
with all pertinent information relating to the action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to a physician or podiatrist in
this state, including the state Board of Risk and Insurance
Management, shall submit to the board the following information
within thirty days from any judgment or settlement of a civil or
medical professional liability action excepting product liability
actions: The name of the insured; the date of any judgment or
settlement; whether any appeal has been taken on the judgment and,
if so, by which party; the amount of any settlement or judgment
against the insured; and other information required by the board.
Within thirty days from the entry of an order by a court in a
medical professional liability action or other civil action in
which a physician or podiatrist licensed by the board is determined to have rendered health care services below the applicable standard
of care, the clerk of the court in which the order was entered
shall forward a certified copy of the order to the board.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be licensed is
convicted of a felony under the laws of this state or of any crime
under the laws of this state involving alcohol or drugs in any way,
including any controlled substance under state or federal law, the
clerk of the court of record in which the conviction was entered
shall forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter twenty-nine-a of this code. After reviewing the record of the hearing, if
the board determines that a violation of this subsection has
occurred, the board shall assess a civil penalty of not less than
$1,000 nor more than $10,000 against the violator. The board shall
notify any person so assessed of the assessment in writing and the
notice shall specify the reasons for the assessment. If the
violator fails to pay the amount of the assessment to the board
within thirty days, the Attorney General may institute a civil
action in the circuit court of Kanawha County to recover the amount
of the assessment. In any civil action, the court's review of the
board's action shall be conducted in accordance with the provisions
of section four, article five, chapter twenty-nine-a of this code.
Notwithstanding any other provision of this article to the
contrary, when there are conflicting views by recognized experts as
to whether any alleged conduct breaches an applicable standard of
care, the evidence must be clear and convincing before the board
may find that the physician or podiatrist has demonstrated a lack
of professional competence to practice with a reasonable degree of
skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of that person amounts to medical professional liability or
professional incompetence.
The board shall provide forms for filing reports pursuant to this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of the physician or
podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in this
state and may discipline a physician or podiatrist licensed or
otherwise lawfully practicing in this state who, after a hearing,
has been adjudged by the board as unqualified due to any of the
following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to
renew a license to practice medicine and surgery or podiatry by
bribery, fraudulent misrepresentation or through known error of the
board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized
person to practice medicine and surgery or podiatry contrary to
law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the foregoing.
The reports and records covered in this subdivision mean only those
that are signed in the capacity as a licensed physician or
podiatrist;
(6) Requesting, receiving or paying directly or indirectly a
payment, rebate, refund, commission, credit or other form of profit
or valuable consideration for the referral of patients to any
person or entity in connection with providing medical or other
health care services or clinical laboratory services, supplies of
any kind, drugs, medication or any other medical goods, services or
devices used in connection with medical or other health care
services;
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in which
the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the
patient. The written disclosure shall indicate that the patient may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed or any pharmacy for
purposes of purchasing any prescribed drug or any other medical
goods or devices used in connection with medical or other health
care services;
As used in this subdivision, "proprietary interest" does not
include an ownership interest in a building in which space is
leased to a clinical laboratory or pharmacy at the prevailing rate
under a lease arrangement that is not conditional upon the income
or gross receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation in
the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of
treatment of a patient, including, but not limited to, patient
histories, examination and test results and treatment rendered, if
any;
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is not limited to, the promotion or sale of services, goods, appliances or
drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith and
in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice. Provided, That A physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients in
his or her care and, in so doing, exceeds the average dosage of a
pain relieving controlled substance, as defined in Schedules II and
III of the Uniform Controlled Substance Act, does not violate this
article. A physician licensed under this chapter may not be
disciplined for providing expedited partner therapy in accordance
with the provisions of article four-f, chapter sixteen of this
code;
(14) Performing any procedure or prescribing any therapy that,
by the accepted standards of medical practice in the community,
would constitute experimentation on human subjects without first
obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he or she is not competent to perform;
(16) Delegating professional responsibilities to a person when
the physician or podiatrist delegating the responsibilities knows
or has reason to know that the person is not qualified by training,
experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board or failing to comply with a subpoena or subpoena
duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or preclude
another physician or podiatrist from lawfully advertising his or
her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
impairment, including deterioration through the aging process, loss
of motor skill or abuse of drugs or alcohol. A physician or
podiatrist adversely affected under this subdivision shall be
afforded an opportunity at reasonable intervals to demonstrate that
he or she may resume the competent practice of medicine and surgery
or podiatry with reasonable skill and safety to patients. In any
proceeding under this subdivision, neither the record of proceedings nor any orders entered by the board shall be used
against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry in
this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the
guilty verdict or plea rendered in the court is sufficient proof
thereof for the purposes of this article. A plea of nolo
contendere has the same effect as a verdict or plea of guilt. Upon
application of a physician that has had his or her license revoked
because of a drug related felony conviction, upon completion of any
sentence of confinement, parole, probation or other court-ordered
supervision and full satisfaction of any fines, judgments or other
fees imposed by the sentencing court, the board may issue the
applicant a new license upon a finding that the physician is,
except for the underlying conviction, otherwise qualified to
practice medicine: Provided, That the board may place whatever
terms, conditions or limitations it deems appropriate upon a physician licensed pursuant to this subsection.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after
the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint
shall be dismissed: Provided, That in cases of conduct alleged to
be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician's or podiatrist's current
patients, the investigating body may conduct a limited
investigation related to the physician's or podiatrist's current
capacity and qualification to practice and may recommend
conditions, restrictions or limitations on the physician's or
podiatrist's license to practice that it considers necessary for
the protection of the public. Any report shall contain
recommendations for any necessary disciplinary measures and shall
be filed with the board within ninety days of any referral. The
recommendations shall be considered by the board and the case may
be further investigated by the board. The board after full
investigation shall take whatever action it considers appropriate, as provided in this section.
(f) The investigating body, as provided in subsection (e) of
this section, may request and the board under any circumstances may
require a physician or podiatrist or person applying for licensure
or other authorization to practice medicine and surgery or podiatry
in this state to submit to a physical or mental examination by a
physician or physicians approved by the board. A physician or
podiatrist submitting to an examination has the right, at his or
her expense, to designate another physician to be present at the
examination and make an independent report to the investigating
body or the board. The expense of the examination shall be paid by
the board. Any individual who applies for or accepts the privilege
of practicing medicine and surgery or podiatry in this state is
considered to have given his or her consent to submit to all
examinations when requested to do so in writing by the board and to
have waived all objections to the admissibility of the testimony or
examination report of any examining physician on the ground that
the testimony or report is privileged communication. If a person
fails or refuses to submit to an examination under circumstances
which the board finds are not beyond his or her control, failure or
refusal is prima facie evidence of his or her inability to practice
medicine and surgery or podiatry competently and in compliance with
the standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the board may appoint one or more licensed physicians to act for it in
investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be
heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any charge by the introduction of evidence, the right to be
represented by counsel, the right to present and cross-examine
witnesses and the right to have subpoenas and subpoenas duces tecum
issued on his or her behalf for the attendance of witnesses and the
production of documents. The board shall make all its final
actions public. The order shall contain the terms of all action
taken by the board.
(i) In disciplinary actions in which probable cause has been
found by the board, the board shall, within twenty days of the date
of service of the written notice of charges or sixty days prior to
the date of the scheduled hearing, whichever is sooner, provide the respondent with the complete identity, address and telephone number
of any person known to the board with knowledge about the facts of
any of the charges; provide a copy of any statements in the
possession of or under the control of the board; provide a list of
proposed witnesses with addresses and telephone numbers, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of Rule
26(b)(4) of the West Virginia Rules of Civil Procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing: Provided, That the board shall not be required to furnish
or produce any materials which contain opinion work product
information or would be a violation of the attorney-client
privilege. Within twenty days of the date of service of the
written notice of charges, the board shall disclose any exculpatory
evidence with a continuing duty to do so throughout the
disciplinary process. Within thirty days of receipt of the board's
mandatory discovery, the respondent shall provide the board with
the complete identity, address and telephone number of any person
known to the respondent with knowledge about the facts of any of
the charges; provide a list of proposed witnesses with addresses
and telephone numbers, to be called at hearing, with a brief
summary of his or her anticipated testimony; provide disclosure of any trial expert pursuant to the requirements of Rule 26(b)(4) of
the West Virginia Rules of Civil Procedure; provide inspection and
copying of the results of any reports of physical and mental
examinations or scientific tests or experiments; and provide a list
and copy of any proposed exhibit to be used at the hearing.
(j) Whenever it finds any person unqualified because of any of
the grounds set forth in subsection (c) of this section, the board
may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for not
more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or
dispense controlled substances for a period not to exceed ten
years;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or
continued licensure or renewal of licensure or other authorization
to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of a
physician or podiatrist designated by the board for a specified
period of time; and
(8) Assess a civil fine of not less than $1,000 nor more than
$10,000.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may take
any of the actions provided in subsection (j) of this section on a
temporary basis and without a hearing if institution of proceedings
for a hearing before the board are initiated simultaneously with
the temporary action and begin within fifteen days of the action.
The board shall render its decision within five days of the
conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that there is newly discovered evidence of such a character as ought to
produce an opposite result at a second hearing on the merits before
the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not have
secured the newly discovered evidence prior to the appeal.
A person may not practice medicine and surgery or podiatry or
deliver health care services in violation of any disciplinary order
revoking, suspending or limiting his or her license while any
appeal is pending. Within sixty days, the board shall report its
final action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist, limitation
on practice privileges or other disciplinary action against any
physician or podiatrist to all appropriate state agencies,
appropriate licensed health facilities and hospitals, insurance
companies or associations writing medical malpractice insurance in
this state, the American Medical Association, the American Podiatry
Association, professional societies of physicians or podiatrists in
the state and any entity responsible for the fiscal administration
of Medicare and Medicaid.
(m) Any person against whom disciplinary action has been taken
under the provisions of this article shall, at reasonable intervals, be afforded an opportunity to demonstrate that he or she
can resume the practice of medicine and surgery or podiatry on a
general or limited basis. At the conclusion of a suspension,
limitation or restriction period the physician or podiatrist may
resume practice if the board has so ordered.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity or
organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or
a medical peer review committee pursuant to law and any person
acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report
or information or assists the board or a hospital governing body or
any committee in carrying out any of its duties or functions
provided by law is immune from civil or criminal liability, except
that the unlawful disclosure of confidential information possessed
by the board is a misdemeanor as provided in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided in this section. The board may grant the request and, if it considers it appropriate, may waive the
commencement or continuation of other proceedings under this
section. A physician or podiatrist whose license is limited or
surrendered or against whom other action is taken under this
subsection may, at reasonable intervals, petition for removal of
any restriction or limitation on or for reinstatement of his or her
license to practice medicine and surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section. If
probable cause is found to exist, all proceedings on the charges
shall be open to the public who are entitled to all reports,
records and nondeliberative materials introduced at the hearing,
including the record of the final action taken: Provided, That any
medical records, which were introduced at the hearing and which
pertain to a person who has not expressly waived his or her right
to the confidentiality of the records, may not be open to the
public nor is the public entitled to the records.
(q) If the board receives notice that a physician or
podiatrist has been subjected to disciplinary action or has had his
or her credentials suspended or revoked by the board, a hospital or a professional society, as defined in subsection (b) of this
section, for three or more incidents during a five-year period, the
board shall require the physician or podiatrist to practice under
the direction of a physician or podiatrist designated by the board
for a specified period of time to be established by the board.
(r) Notwithstanding any other provisions of this article, the
board may, at any time, on its own motion, or upon motion by the
complainant, or upon motion by the physician or podiatrist, or by
stipulation of the parties, refer the matter to mediation. The
board shall obtain a list from the West Virginia State Bar's
mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or
podiatrist may choose a mediator from that list. If the board and
the physician or podiatrist are unable to agree on a mediator, the
board shall designate a mediator from the list by neutral rotation.
The mediation shall not be considered a proceeding open to the
public and any reports and records introduced at the mediation
shall not become part of the public record. The mediator and all
participants in the mediation shall maintain and preserve the
confidentiality of all mediation proceedings and records. The
mediator may not be subpoenaed or called to testify or otherwise be
subject to process requiring disclosure of confidential information
in any proceeding relating to or arising out of the disciplinary or
licensure matter mediated: Provided, That any confidentiality agreement and any written agreement made and signed by the parties
as a result of mediation may be used in any proceedings
subsequently instituted to enforce the written agreement. The
agreements may be used in other proceedings if the parties agree in
writing.§30-3-16. Physician assistants; definitions; Board of Medicine
rules; annual report; licensure; temporary license;
relicensure; job description required; revocation or
suspension of licensure; responsibilities of
supervising physician; legal responsibility for
physician assistants; reporting by health care
facilities; identification; limitations on
employment and duties; fees; continuing education;
unlawful representation of physician assistant as a
physician; criminal penalties.(a) As used in this section:
(1) "Approved program" means an educational program for
physician assistants approved and accredited by the Committee on
Accreditation of Allied Health Education Programs or its successor;
(2) "Health care facility" means any licensed hospital,
nursing home, extended care facility, state health or mental
institution, clinic or physician's office;
(3) "Physician assistant" means an assistant to a physician who is a graduate of an approved program of instruction in primary
health care or surgery, has attained a baccalaureate or master's
degree, has passed the national certification examination and is
qualified to perform direct patient care services under the
supervision of a physician;
(4) "Physician assistant-midwife" means a physician assistant
who meets all qualifications set forth under subdivision (3) of
this subsection and fulfills the requirements set forth in
subsection (d) of this section, is subject to all provisions of
this section and assists in the management and care of a woman and
her infant during the prenatal, delivery and postnatal periods; and
(5) "Supervising physician" means a doctor or doctors of
medicine or podiatry permanently and fully licensed in this state
without restriction or limitation who assume legal and supervisory
responsibility for the work or training of any physician assistant
under his or her supervision.
(b) The board shall promulgate rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
governing the extent to which physician assistants may function in
this state. The rules shall provide that the physician assistant
is limited to the performance of those services for which he or she
is trained and that he or she performs only under the supervision
and control of a physician permanently licensed in this state but
that supervision and control does not require the personal presence of the supervising physician at the place or places where services
are rendered if the physician assistant's normal place of
employment is on the premises of the supervising physician. The
supervising physician may send the physician assistant off the
premises to perform duties under his or her direction but a
separate place of work for the physician assistant may not be
established. In promulgating the rules, the board shall allow the
physician assistant to perform those procedures and examinations
and, in the case of certain authorized physician assistants, to
prescribe at the direction of his or her supervising physician, in
accordance with subsection (r) of this section, those categories of
drugs submitted to it in the job description required by this
section. Certain authorized physician assistants may pronounce
death in accordance with the rules proposed by the board which
receive legislative approval. The board shall compile and publish
an annual report that includes a list of currently licensed
physician assistants and their supervising physician(s) and
location in the state.
(c) The board shall license as a physician assistant any
person who files an application together with a proposed job
description and furnishes satisfactory evidence to it that he or
she has met the following standards:
(1) Is a graduate of an approved program of instruction in
primary health care or surgery;
(2) Has passed the certifying examination for a primary care
physician assistant administered by the National Commission on
Certification of Physician Assistants and has maintained
certification by that commission so as to be currently certified;
(3) Is of good moral character; and
(4) Has attained a baccalaureate or master's degree.
(d) The board shall license as a physician assistant-midwife
any person who meets the standards set forth under subsection (c)
of this section and, in addition thereto, the following standards:
(1) Is a graduate of a school of midwifery accredited by the
American College of Nurse-Midwives;
(2) Has passed an examination approved by the board; and
(3) Practices midwifery under the supervision of a board-
certified obstetrician, gynecologist or a board-certified family
practice physician who routinely practices obstetrics.
(e) The board may license as a physician assistant any person
who files an application together with a proposed job description
and furnishes satisfactory evidence that he or she is of good moral
character and meets either of the following standards:
(1) He or she is a graduate of an approved program of
instruction in primary health care or surgery prior to July 1,
1994, and has passed the certifying examination for a physician
assistant administered by the National Commission on Certification
of Physician Assistants and has maintained certification by that commission so as to be currently certified; or
(2) He or she had been certified by the board as a physician
assistant then classified as Type B prior to July 1, 1983.
(f) Licensure of an assistant to a physician practicing the
specialty of ophthalmology is permitted under this section:
Provided, That a physician assistant may not dispense a
prescription for a refraction.
(g) When a graduate of an approved program who has
successfully passed the National Commission on Certification of
Physician Assistants' certifying examination submits an application
to the board for a physician assistant license, accompanied by a
job description as referenced by this section, and a $50 temporary
license fee, and the application is complete, the board shall issue
to that applicant a temporary license allowing that applicant to
function as a physician assistant.
(h) When a graduate of an approved program submits an
application to the board for a physician assistant license,
accompanied by a job description as referenced by this section, and
a $50 temporary license fee, and the application is complete, the
board shall issue to the applicant a temporary license allowing the
applicant to function as a physician assistant until the applicant
successfully passes the National Commission on Certification of
Physician Assistants' certifying examination so long as the
applicant sits for and obtains a passing score on the examination next offered following graduation from the approved program.
(i) No applicant may receive a temporary license who,
following graduation from an approved program, has not obtained a
passing score on the examination.
(j) A physician assistant who has not been certified by the
National Commission on Certification of Physician Assistants will
be restricted to work under the direct supervision of the
supervising physician.
(k) A physician assistant who has been issued a temporary
license shall, within thirty days of receipt of written notice from
the National Commission on Certification of Physician Assistants of
his or her performance on the certifying examination, notify the
board in writing of his or her results. In the event of failure of
that examination, the temporary license shall terminate
automatically and the board shall so notify the physician assistant
in writing.
(l) In the event a physician assistant fails a recertification
examination of the National Commission on Certification of
Physician Assistants and is no longer certified, the physician
assistant shall immediately notify his or her supervising physician
or physicians and the board in writing. The physician assistant
shall immediately cease practicing, the license shall terminate
automatically and the physician assistant is not eligible for
reinstatement until he or she has obtained a passing score on the examination.
(m) A physician applying to the board to supervise a physician
assistant shall affirm that the range of medical services set forth
in the physician assistant's job description are consistent with
the skills and training of the supervising physician and the
physician assistant. Before a physician assistant can be employed
or otherwise use his or her skills, the supervising physician and
the physician assistant must obtain approval of the job description
from the board. The board may revoke or suspend any license of an
assistant to a physician for cause, after giving the assistant an
opportunity to be heard in the manner provided by article five,
chapter twenty-nine-a of this code and as set forth in rules duly
adopted by the board.
(n) The supervising physician is responsible for observing,
directing and evaluating the work, records and practices of each
physician assistant performing under his or her supervision. He or
she shall notify the board in writing of any termination of his or
her supervisory relationship with a physician assistant within ten
days of the termination. The legal responsibility for any
physician assistant remains with the supervising physician at all
times including occasions when the assistant under his or her
direction and supervision aids in the care and treatment of a
patient in a health care facility. In his or her absence, a
supervising physician must designate an alternate supervising physician but the legal responsibility remains with the supervising
physician at all times. A health care facility is not legally
responsible for the actions or omissions of the physician assistant
unless the physician assistant is an employee of the facility.
(o) The acts or omissions of a physician assistant employed by
health care facilities providing inpatient or outpatient services
are the legal responsibility of the facilities. Physician
assistants employed by facilities in staff positions shall be
supervised by a permanently licensed physician.
(p) A health care facility shall report in writing to the
board within sixty days after the completion of the facility's
formal disciplinary procedure and after the commencement and
conclusion of any resulting legal action, the name of any physician
assistant practicing in the facility whose privileges at the
facility have been revoked, restricted, reduced or terminated for
any cause including resignation, together with all pertinent
information relating to the action. The health care facility shall
also report any other formal disciplinary action taken against any
physician assistant by the facility relating to professional
ethics, medical incompetence, medical malpractice, moral turpitude
or drug or alcohol abuse. Temporary suspension for failure to
maintain records on a timely basis or failure to attend staff or
section meetings need not be reported.
(q) When functioning as a physician assistant, the physician assistant shall wear a name tag that identifies him or her as a
physician assistant. A two and one-half by three and one-half inch
card of identification shall be furnished by the board upon
licensure of the physician assistant.
(r) A physician assistant may write or sign prescriptions or
transmit prescriptions by word of mouth, telephone or other means
of communication at the direction of his or her supervising
physician. A fee of $50 will be charged for prescription-writing
privileges. The board shall promulgate rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
governing the eligibility and extent to which a physician assistant
may prescribe at the direction of the supervising physician. The
rules shall include, but not be limited to, the following:
(1) Provisions and restrictions for approving a state
formulary classifying pharmacologic categories of drugs that may be
prescribed by a physician assistant are as follows:
(A) Schedules I and II of the Uniform Controlled Substances
Act, antineoplastic, radiopharmaceuticals, general anesthetics and
radiographic contrast materials shall be excluded from the
formulary;
(B) Drugs listed under Schedule III shall be limited to a
seventy-two hour supply without refill;
(C) In addition to the above referenced provisions and
restrictions and at the direction of a supervising physician, the rules shall permit the prescribing of an annual supply of any drug,
with the exception of controlled substances, which is prescribed
for the treatment of a chronic condition, other than chronic pain
management. For the purposes of this section, a "chronic
condition" is a condition which lasts three months or more,
generally cannot be prevented by vaccines, can be controlled but
not cured by medication and does not generally disappear. These
conditions, with the exception of chronic pain, include, but are
not limited to, arthritis, asthma, cardiovascular disease, cancer,
diabetes, epilepsy and seizures and obesity. The prescriber
authorized in this section shall note on the prescription the
chronic disease being treated.
(D) Categories of other drugs may be excluded as determined by
the board.
(2) All pharmacological categories of drugs to be prescribed
by a physician assistant shall be listed in each job description
submitted to the board as required in subsection (i) of this
section;
(3) The maximum dosage a physician assistant may prescribe;
(4) A requirement that to be eligible for prescription
privileges, a physician assistant shall have performed patient care
services for a minimum of two years immediately preceding the
submission to the board of the job description containing
prescription privileges and shall have successfully completed an accredited course of instruction in clinical pharmacology approved
by the board; and
(5) A requirement that to maintain prescription privileges, a
physician assistant shall continue to maintain national
certification as a physician assistant and, in meeting the national
certification requirements, shall complete a minimum of ten hours
of continuing education in rational drug therapy in each
certification period. Nothing in this subsection permits a
physician assistant to independently prescribe or dispense drugs;and
__________(6) A provision that a physician assistant licensed under this
chapter may not be disciplined for providing expedited partner
therapy in accordance with the provisions of article four-f,
chapter sixteen of this code.
(s) A supervising physician may not supervise at any one time
more than three full-time physician assistants or their equivalent,
except that a physician may supervise up to four hospital-employed
physician assistants. No physician shall supervise more than four
physician assistants at any one time.
(t) A physician assistant may not sign any prescription,
except in the case of an authorized physician assistant at the
direction of his or her supervising physician in accordance with
the provisions of subsection (r) of this section. A physician
assistant may not perform any service that his or her supervising physician is not qualified to perform. A physician assistant may
not perform any service that is not included in his or her job
description and approved by the board as provided for in this
section.
(u) The provisions of this section do not authorize a
physician assistant to perform any specific function or duty
delegated by this code to those persons licensed as chiropractors,
dentists, dental hygienists, optometrists or pharmacists or
certified as nurse anesthetists.
(v) Each application for licensure submitted by a licensed
supervising physician under this section is to be accompanied by a
fee of $200. A fee of $100 is to be charged for the biennial
renewal of the license. A fee of $50 is to be charged for any
change or addition of supervising physician or change or addition
of job location. A fee of $50 will be charged for prescriptive
writing privileges.
(w) As a condition of renewal of physician assistant license,
each physician assistant shall provide written documentation of
participation in and successful completion during the preceding
two-year period of continuing education, in the number of hours
specified by the board by rule, designated as Category I by the
American Medical Association, American Academy of Physician
Assistants or the Academy of Family Physicians and continuing
education, in the number of hours specified by the board by rule, designated as Category II by the Association or either Academy.
(x) Notwithstanding any provision of this chapter to the
contrary, failure to timely submit the required written
documentation results in the automatic expiration of any license as
a physician assistant until the written documentation is submitted
to and approved by the board.
(y) If a license is automatically expired and reinstatement is
sought within one year of the automatic expiration, the former
licensee shall:
(1) Provide certification with supporting written
documentation of the successful completion of the required
continuing education;
(2) Pay a renewal fee; and
(3) Pay a reinstatement fee equal to fifty percent of the
renewal fee.
(z) If a license is automatically expired and more than one
year has passed since the automatic expiration, the former licensee
shall:
(1) Apply for a new license;
(2) Provide certification with supporting written
documentation of the successful completion of the required
continuing education; and
(3) Pay such fees as determined by the board.
(aa) It is unlawful for any physician assistant to represent to any person that he or she is a physician, surgeon or podiatrist.
A person who violates the provisions of this subsection is guilty
of a felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility for not less than one nor more than two
years, or be fined not more than $2,000, or both fined and
imprisoned.
(bb) All physician assistants holding valid certificates
issued by the board prior to July 1, 1992, are licensed under this
section.
ARTICLE 7. REGISTERED PROFESSIONAL NURSES.§30-7-15a. Prescriptive authority for prescription drugs;
coordination with Board of Pharmacy. (a) The board may, in its discretion, authorize an advanced
practice registered nurse to prescribe prescription drugs in a
collaborative relationship with a physician licensed to practice in
West Virginia and in accordance with applicable state and federal
laws. An authorized advanced practice registered nurse may write
or sign prescriptions or transmit prescriptions verbally or by
other means of communication.
(b) For purposes of this section an agreement to a
collaborative relationship for prescriptive practice between a
physician and an advanced practice registered nurse shall be set
forth in writing. Verification of the agreement shall be filed
with the board by the advanced practice registered nurse. The board shall forward a copy of the verification to the Board of
Medicine and the Board of Osteopathic Medicine. Collaborative
agreements shall include, but are not limited to, the following:
(1) Mutually agreed upon written guidelines or protocols for
prescriptive authority as it applies to the advanced practice
registered nurse's clinical practice;
(2) Statements describing the individual and shared
responsibilities of the advanced practice registered nurse and the
physician pursuant to the collaborative agreement between them;
(3) Periodic and joint evaluation of prescriptive practice;
and
(4) Periodic and joint review and updating of the written
guidelines or protocols.
(c) The board shall promulgate legislative rules in accordance
with the provisions of chapter twenty-nine-a of this code governing
the eligibility and extent to which an advanced practice registered
nurse may prescribe drugs. Such rules shall provide, at a minimum,
a state formulary classifying those categories of drugs which shall
not be prescribed by advanced practice registered nurse including,
but not limited to, Schedules I and II of the Uniform Controlled
Substances Act, antineoplastics, radiopharmaceuticals and general
anesthetics. Drugs listed under Schedule III shall be limited to
a seventy-two hour supply without refill. The rules shall also
include a provision that advanced nurse practitioners licensed under this chapter may not be disciplined for providing expedited
partner therapy in accordance with the provisions of article four-
f, chapter sixteen of this code. In addition to the above
referenced provisions and restrictions and pursuant to a
collaborative agreement as set forth in subsections (a) and (b) of
this section, the rules shall permit the prescribing of an annual
supply of any drug, with the exception of controlled substances,
which is prescribed for the treatment of a chronic condition, other
than chronic pain management. For the purposes of this section, a
"chronic condition" is a condition which lasts three months or
more, generally cannot be prevented by vaccines, can be controlled
but not cured by medication and does not generally disappear.
These conditions, with the exception of chronic pain, include, but
are not limited to, arthritis, asthma, cardiovascular disease,
cancer, diabetes, epilepsy and seizures, and obesity. The
prescriber authorized in this section shall note on the
prescription the chronic disease being treated.
(d) The board shall consult with other appropriate boards for
the development of the formulary.
(e) The board shall transmit to the Board of Pharmacy a list
of all advanced practice registered nurses with prescriptive
authority. The list shall include:
(1) The name of the authorized advanced practice registered
nurse;
(2) The prescriber's identification number assigned by the
board; and
(3) The effective date of prescriptive authority.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.§30-14-11. Refusal, suspension or revocation of license;
suspension or revocation of certificate of
authorization. (a) The board may either refuse to issue or may suspend or
revoke any license for any one or more of the following causes:
(1) Conviction of a felony, as shown by a certified copy of
the record of the trial court;
(2) Conviction of a misdemeanor involving moral turpitude;
(3) Violation of any provision of this article regulating the
practice of osteopathic physicians and surgeons;
(4) Fraud, misrepresentation or deceit in procuring or
attempting to procure admission to practice;
(5) Gross malpractice;
(6) Advertising by means of knowingly false or deceptive
statements;
(7) Advertising, practicing or attempting to practice under a
name other than one's own;
(8) Habitual drunkenness, or habitual addiction to the use of
morphine, cocaine or other habit-forming drugs.
(b) The board shall also have the power to suspend or revoke for cause any certificate of authorization issued by it. It shall
have the power to reinstate any certificate of authorization
suspended or revoked by it.(c) An osteopathic physician licensed under this chapter may
not be disciplined for providing expedited partner therapy in
accordance with the provisions of article four-f, chapter sixteen
of this code.ARTICLE 14A. ASSISTANTS TO OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14A-1. Osteopathic physician assistant to osteopathic
Physicians and surgeons; definitions; Board of
osteopathy rules; licensure; temporary licensure;
renewal of license; job description required;
revocation or suspension of license;
responsibilities of the supervising physician;
legal responsibility for osteopathic physician
assistants; reporting of disciplinary procedures;
identification; limitation on employment and
duties; fees; unlawful use of the title of
"osteopathic physician assistant"; unlawful
representation of an osteopathic physician
assistant as a physician; criminal penalties.
(a) As used in this section:
(1) "Approved program" means an educational program for osteopathic physician assistants approved and accredited by the
Committee on Allied Health Education and Accreditation or its
successor.
(2) "Board" means the Board of Osteopathy established under
the provisions of article fourteen, chapter thirty of this code.
(3) "Direct supervision" means the presence of the supervising
physician at the site where the osteopathic physician assistant
performs medical duties.
(4) "Health care facility" means any licensed hospital,
nursing home, extended care facility, state health or mental
institution, clinic or physician's office.
(5) "License" means a certificate issued to an osteopathic
physician assistant who has passed the examination for a primary
care or surgery physician assistant administered by the National
Board of Medical Examiners on behalf of the National Commission on
Certification of Physician Assistants. All osteopathic physician
assistants holding valid certificates issued by the board prior to
March 31, 2010, are licensed under the provisions of this article,
but must renew the license pursuant to the provisions of this
article.
(6) "Osteopathic physician assistant" means an assistant to an
osteopathic physician who is a graduate of an approved program of
instruction in primary care or surgery, has passed the National
Certification Examination and is qualified to perform direct patient care services under the supervision of an osteopathic
physician.
(7) "Supervising physician" means a doctor of osteopathy
permanently licensed in this state who assumes legal and
supervising responsibility for the work or training of an
osteopathic physician assistant under his or her supervision.
(b) The board shall propose emergency and legislative rules
for legislative approval pursuant to the provisions of article
three, chapter twenty-nine-a of this code, governing the extent to
which osteopathic physician assistants may function in this state.
The rules shall provide that:
(1) The osteopathic physician assistant is limited to the
performance of those services for which he or she is trained;
(2) The osteopathic physician assistant performs only under
the supervision and control of an osteopathic physician permanently
licensed in this state but such supervision and control does not
require the personal presence of the supervising physician at the
place or places where services are rendered if the osteopathic
physician assistant's normal place of employment is on the premises
of the supervising physician. The supervising physician may send
the osteopathic physician assistant off the premises to perform
duties under his or her direction, but a separate place of work for
the osteopathic physician assistant may not be established; and
(3) The board may allow the osteopathic physician assistant to perform those procedures and examinations and, in the case of
authorized osteopathic physician assistants, to prescribe at the
direction of his or her supervising physician in accordance with
subsections (p) and (q) of this section those categories of drugs
submitted to it in the job description required by subsection (f)
of this section; and
_____(4) An osteopathic physician assistant may not be disciplined
for providing expedited partner therapy in accordance with the
provisions of article four-f, chapter sixteen of this code.
(c) The board shall compile and publish an annual report that
includes a list of currently licensed osteopathic physician
assistants and their employers and location in the state.
(d) The board shall license as an osteopathic physician
assistant a person who files an application together with a
proposed job description and furnishes satisfactory evidence that
he or she has met the following standards:
(1) Is a graduate of an approved program of instruction in
primary health care or surgery;
(2) Has passed the examination for a primary care or surgery
physician assistant administered by the National Board of Medical
Examiners on behalf of the National Commission on Certification of
Physician Assistants; and
(3) Is of good moral character.
(e) When a graduate of an approved program submits an application to the board, accompanied by a job description in
conformity with this section, for an osteopathic physician
assistant license, the board may issue to the applicant a temporary
license allowing the applicant to function as an osteopathic
physician assistant for the period of one year. The temporary
license may be renewed for one additional year upon the request of
the supervising physician. An osteopathic physician assistant who
has not been certified as such by the National Board of Medical
Examiners on behalf of the National Commission on Certification of
Physician Assistants will be restricted to work under the direct
supervision of the supervising physician.
(f) An osteopathic physician applying to the board to
supervise an osteopathic physician assistant shall provide a job
description that sets forth the range of medical services to be
provided by the assistant. Before an osteopathic physician
assistant can be employed or otherwise use his or her skills, the
supervising physician must obtain approval of the job description
from the board. The board may revoke or suspend a license of an
assistant to a physician for cause, after giving the person an
opportunity to be heard in the manner provided by sections eight
and nine, article one of this chapter.
(g) The supervising physician is responsible for observing,
directing and evaluating the work records and practices of each
osteopathic physician assistant performing under his or her supervision. He or she shall notify the board in writing of any
termination of his or her supervisory relationship with an
osteopathic physician assistant within ten days of his or her
termination. The legal responsibility for any osteopathic
physician assistant remains with the supervising physician at all
times, including occasions when the assistant, under his or her
direction and supervision, aids in the care and treatment of a
patient in a health care facility. In his or her absence, a
supervising physician must designate an alternate supervising
physician but the legal responsibility remains with the supervising
physician at all times. A health care facility is not legally
responsible for the actions or omissions of an osteopathic
physician assistant unless the osteopathic physician assistant is
an employee of the facility.
(h) The acts or omissions of an osteopathic physician
assistant employed by health care facilities providing in-patient
services are the legal responsibility of the facilities.
Osteopathic physician assistants employed by such facilities in
staff positions shall be supervised by a permanently licensed
physician.
(i) A health care facility shall report in writing to the
board within sixty days after the completion of the facility's
formal disciplinary procedure, and after the commencement and the
conclusion of any resulting legal action, the name of an osteopathic physician assistant practicing in the facility whose
privileges at the facility have been revoked, restricted, reduced
or terminated for any cause including resignation, together with
all pertinent information relating to such action. The health care
facility shall also report any other formal disciplinary action
taken against an osteopathic physician assistant by the facility
relating to professional ethics, medical incompetence, medical
malpractice, moral turpitude or drug or alcohol abuse. Temporary
suspension for failure to maintain records on a timely basis or
failure to attend staff or section meetings need not be reported.
(j) When functioning as an osteopathic physician assistant,
the osteopathic physician assistant shall wear a name tag that
identifies him or her as a physician assistant.
(k) (1) A supervising physician shall not supervise at any
time more than three osteopathic physician assistants except that
a physician may supervise up to four hospital-employed osteopathic
physician assistants: Provided, That an alternative supervisor has
been designated for each.
(2) An osteopathic physician assistant shall not perform any
service that his or her supervising physician is not qualified to
perform.
(3) An osteopathic physician assistant shall not perform any
service that is not included in his or her job description and
approved by the board as provided in this section.
(4) The provisions of this section do not authorize an
osteopathic physician assistant to perform any specific function or
duty delegated by this code to those persons licensed as
chiropractors, dentists, registered nurses, licensed practical
nurses, dental hygienists, optometrists or pharmacists or certified
as nurse anesthetists.
(l) An application for license or renewal of license shall be
accompanied by payment of a fee established by legislative rule of
the Board of Osteopathy pursuant to the provisions of article
three, chapter twenty-nine-a of this code.
(m) As a condition of renewal of an osteopathic physician
assistant license, each osteopathic physician assistant shall
provide written documentation satisfactory to the board of
participation in and successful completion of continuing education
in courses approved by the Board of Osteopathy for the purposes of
continuing education of osteopathic physician assistants. The
osteopathy board shall propose legislative rules for minimum
continuing hours necessary for the renewal of a license. These
rules shall provide for minimum hours equal to or more than the
hours necessary for national certification. Notwithstanding any
provision of this chapter to the contrary, failure to timely submit
the required written documentation results in the automatic
suspension of a license as an osteopathic physician assistant until
the written documentation is submitted to and approved by the board.
(n) It is unlawful for any person who is not licensed by the
board as an osteopathic physician assistant to use the title of
osteopathic physician assistant or to represent to any other person
that he or she is an osteopathic physician assistant. A person who
violates the provisions of this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $2,000.
(o) It is unlawful for an osteopathic physician assistant to
represent to any person that he or she is a physician. A person
who violates the provisions of this subsection is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility for not less than one, nor more than
two years, or be fined not more than $2,000, or both fined and
imprisoned.
(p) An osteopathic physician assistant may write or sign
prescriptions or transmit prescriptions by word of mouth, telephone
or other means of communication at the direction of his or her
supervising physician. The board shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code governing the eligibility
and extent to which an osteopathic physician assistant may
prescribe at the direction of the supervising physician. The rules
shall provide for a state formulary classifying pharmacologic categories of drugs which may be prescribed by such an osteopathic
physician assistant. In classifying such pharmacologic categories,
those categories of drugs which shall be excluded include, but are
not limited to, Schedules I and II of the Uniform Controlled
Substances Act, antineoplastics, radiopharmaceuticals, general
anesthetics and radiographic contrast materials. Drugs listed
under Schedule III are limited to a seventy-two hour supply without
refill. In addition to the above referenced provisions and
restrictions and at the direction of a supervising physician, the
rules shall permit the prescribing an annual supply of any drug
other than controlled substances which is prescribed for the
treatment of a chronic condition other than chronic pain
management. For the purposes of this section, a "chronic
condition" is a condition which last three months or more,
generally cannot be prevented by vaccines, can be controlled but
not cured by medication and does not generally disappear. These
conditions include, but are not limited to, arthritis, asthma,
cardiovascular disease, cancer, diabetes, epilepsy and seizures and
obesity. The prescriber authorized in this section shall note on
the prescription the condition for which the patient is being
treated. The rules shall provide that all pharmacological
categories of drugs to be prescribed by an osteopathic physician
assistant be listed in each job description submitted to the board
as required in this section. The rules shall provide the maximum dosage an osteopathic physician assistant may prescribe.
(q) (1) The rules shall provide that to be eligible for such
prescription privileges, an osteopathic physician assistant must:
(A) Submit an application to the board for prescription
privileges;
(B) Have performed patient care services for a minimum of two
years immediately preceding the application; and
(C) Have successfully completed an accredited course of
instruction in clinical pharmacology approved by the board.
(2) The rules shall provide that to maintain prescription
privileges, an osteopathic physician assistant shall:
(A) Continue to maintain national certification as an
osteopathic physician assistant; and
(B) Complete a minimum of ten hours of continuing education in
rational drug therapy in each licensing period.
(3) Nothing in this subsection permits an osteopathic
physician assistant to independently prescribe or dispense drugs.

NOTE: The purpose of this bill is to allow for expedited
partner therapy. It would permit prescribing antibiotics for the
partner of a patient without first examining the partner. It
requires counseling by the physician. The bill also requires the
Department of Health and Human Resources to develop outreach
materials. The bill has limited liability for physician, physician
assistants and advance nurse practitioners who prescribe in an
expedited partner therapy setting. The bill makes changes to the
licensing portions of the code to make it permissible for the
various disciplines to prescribe without disciplinary actions from
their respective licensing boards.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.

§16-4F-1, §16-4F-2, §16-4F-3, §16-4F-4 and §16-4F-5 are new;
therefore, strike-throughs and underscoring have been omitted.